No Privilege for Communications Between Insurance Adjuster and In-House Counsel

Courts around the country continue to refine the scope of the attorney-client privilege and the attorney work-product doctrine in the context of communications between an insurance company adjuster and the insurer’s in-house counsel. Recently, the United States District Court for the District of Colorado held that a claims adjuster’s emails, claim notes, and interoffice memoranda are not privileged, even though they involved the carrier’s in-house attorney. Olsen v. Owners Ins. Co., No. 18-CV-1665-RM-NYW, 2019 WL 2502201 (D. Colo. June 17,
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Part 2: Insurance Company Compliance with the CCPA as Businesses

This blog post is our second post in a multi-part series addressing what insurers need to know about the California Consumer Privacy Act (CCPA). This post focuses on insurers’ compliance obligations under the CCPA. If you would benefit from a background discussion on the CCPA, please visit our first post in this series entitled “Part 1: The California Consumer Privacy Act – What Insurers Need to Know.” The CCPA applies to insurers to the extent they qualify as “businesses” that
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Eleventh Circuit Holds that Referencing Sealed Documents is Not Proper Notice

The Eleventh Circuit upheld a win for the insurer under a claims-made-and-reported policy in Crowley Mar. Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, No. 18-10953, 2019 WL 3294003 (11th Cir. July 23, 2019), finding that the insured did not provide timely notice. In so holding, the court rejected the insured’s argument that it provided timely notice by sending a letter to the insurer referencing an affidavit which the insured claimed alleged wrongful conduct against the insured, but was sealed, preventing the insurer from confirming the insured’s claim for
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Florida’s Assignment of Benefits Reform Bill Becomes Law Ahead of Peak Hurricane Season

Florida’s new Assignment of Benefits (AOB) reform bill became law on July 1, 2019, a short time ahead of the peak of this year’s hurricane season. Time will tell if it results in the amelioration of the AOB litigation epidemic, fueled by Florida’s Attorney’s Fee Statute Section 627.428, awarding attorney’s fees to prevailing assignees in insurance disputes. The attorney’s fee statute is credited with having incentivized Florida contractors to litigate even minor differences[1] with insurers over repair work performed or
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What Is Modern Warfare? Ninth Circuit Rules War Exclusions Do Not Preclude Coverage for First Party Loss Caused by Hamas Rocket Attacks

On July 12, 2019, the Ninth Circuit Court of Appeals found two “war” exclusions inapplicable, under California law, to a loss caused by 2014 hostilities between Israel and Hamas. Universal Cable Productions, LLC v. Atlantic Specialty Insurance Co., No. 17-56672, 2019 WL 3049034 (July 12, 2019). In doing so, the court overturned the Central District of California’s award of summary judgment in favor of Atlantic Specialty Insurance Company. The parties’ dispute arose out of Atlantic’s refusal to indemnify Universal for
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Second Circuit Finds Insurer’s 52-Day Delay in Disclaiming Coverage Did Not Violate Insurance Law Section 3420(d)(2)’s Timely Disclaimer Requirement

The court of appeals for the Second Circuit recently confirmed that a liability insurer that waits to deny coverage so that it can investigate the facts giving rise to the disclaimer will not be estopped from denying coverage under Insurance Law Section 3420(d)(2), provided that the insurer does not use the investigation as a tactic to delay the disclaimer. United Fin. Cas. Co. v. Country-Wide Ins. Co., No. 18-3022, 2019 WL 2724267 (2d Cir. July 1, 2019). Section 3420(d)(2) requires
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Texas Supreme Court Opens the Door for Statutory Damages After Appraisal

Good faith use of the appraisal process to resolve legitimate valuation disputes under a property policy is no longer an absolute defense under Texas law to claims for statutory delay damages. In a pair of decisions regarding appraisal, the Texas Supreme Court held that when appraisal is invoked after the commencement of litigation, the prompt payment of the award by an insurer precludes statutory bad faith claims under Chapter 541 of the Texas Insurance Code, but potentially allows for statutory
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When a Bad Apple Spoils the Bunch: An Appraiser’s Bias May Cost the Policyholder in the Long Run

In a long-awaited decision, Colorado’s highest court ruled a designated appraiser in a property insurance dispute must remain impartial and free from favoring one party over the other. Specifically, the Supreme Court held that the policy language required appraisers to be “unbiased, disinterested, and unswayed by personal interest.” This decision is a win for the insurance industry, although the Supreme Court created a framework that is certain to lead to disputes about an appraiser’s partiality in the future. The decision
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Part 1: The California Consumer Privacy Act — What Insurers Need to Know

Assembly Bill No. 375, better known as the California Consumer Privacy Act (CCPA), is likely the most robust and sweeping privacy law in the United States. This is not surprising as California is notoriously at the forefront of passing privacy legislation, even though close to 20 other states are also taking steps to pass similar legislation. The CCPA, which becomes effective January 1, 2020, creates a number of consumer rights regarding the collection, storage, selling, and processing of personal information,
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Pennsylvania Federal Court Reinforces The Principle That Liability Policies Insure Against Legal Obligations Owed To Others

Defense and indemnity obligations owed under liability policies depend on the allegations made in the underlying lawsuit. In NVR, Inc. v. Motorists Mut. Ins. Co., 2019 WL 989393 (W.D. Pa. Mar. 1, 2019), NVR, an additional insured under a CGL policy sought coverage for two lawsuits that arose out of a heater explosion at a construction site. NVR was the defendant in personal injury litigation. In a separate lawsuit, NVR sought recovery for property damage that it incurred due to the
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